text:
    Cecil HIMES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 17, 1966.

      Jackson W. White, Jack L. Miller, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Cecil Himes appeals from a judgment which sentenced him to life imprisonment pursuant to a verdict finding him guilty of armed robbery. His only claim of error is that he was denied effective assistance of counsel on the trial.

Two attorneys were appointed to represent Himes well in advance of the date of his trial, and they had ample time for preparation. On the day of the trial the presentation of evidence, both for the prosecution and for the defense, was completed by noon (most of the evidence pertained to the matter of identity of Himes as the perpetrator of the crime).

After the noon recess counsel for Himes requested a conference in chambers, which was granted by the judge. Attending were Himes, his attorneys, the Commonwealth’s attorney, the judge, and the reporter. Himes’ attorneys told the judge that Himes had expressed dissatisfaction with their handling of the case and had indicated a desire to discharge them. Upon questioning by the judge, Himes said that he was “dissatisfied” with his attorneys (without stating any specific grounds), and that he wanted them discharged. The judge explained to Himes that the trial would not be postponed and that Himes would have a choice either to represent himself or to have other counsel appointed to complete the trial. Himes said he desired other counsel to be appointed. The judge then inquired again, “to be sure,” whether Himes wanted his original counsel to be discharged and new counsel to be appointed, with it being understood that the trial would proceed to conclusion without a continuance. Himes reaffirmed that such was his desire. The judge then discharged Himes’ original counsel, after thanking them and expressing his opinion that they had represented Himes competently and adequately, “as well as anybody else could have done”. The judge then appointed two other attorneys (those who represent Himes on this appeal) and after they had spent around an hour in conference with Himes and his witnesses the trial proceeded with the closing arguments.

The substance of Himes’ argument on this appeal is that his decision was not intelligently and understanding^ made, because the judge did not fully inform and advise him as to the detriments that could result from discharge of his original counsel, or that he would have the right to raise the question of their inadequacy at a later stage of the proceedings; therefore, he says, he cannot be charged with a waiver of his right to effective assistance of counsel.

A reading of the transcript of the conference in chambers convinces us that Himes was fully cognizant and appreciative of his rights and of the gamble he was taking; that the judge made clear to him what his choices were; and that he acted intelligently and understandingly. Furthermore, it is plain that Himes had no legitimate basis for dissatisfaction with his original counsel and that he was deliberately trying to create a situation out of which he could raise a claim of deprivation of constitutional rights.

We think probably it would have been better judgment for the trial judge to have refused to discharge the original counsel. However, his letting Himes have the choice in the matter did not result in a violation of any substantial rights of Himes.

It is our conclusion that Himes intelligently and understanding^ waived (in fact, insisted upon surrendering) his right to effective assistance of counsel. See Coles v. Commonwealth, Ky., 401 S.W.2d 229.

We intend no reflection on the subsequently appointed counsel who completed the trial and are representing Himes on this appeal. They gave all assistance at the trial that the circumstances permitted, and the ground of error they asserted on this appeal was not of their making.

The judgment is affirmed.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Carl CABE, Commissioner of Labor, etc., Appellant, v. Henry DUDGEON et al., Appellees.
    Court of Appeals of Kentucky.
    June 17, 1966.
    Paul D. Rehm, Versailles, Martin Glazer, Dept, of Labor, Frankfort, for appellant.
    Sam Neace, Jr., Florence, for appellee.
    Robert C. Cetrulo, O’Hara & Ruberg, Covington, for Fennell Co., Inc., and Trans-american Surety Co.
   DAVIS, Commissioner.

The question presented here is whether venue of an appeal from an award of the Workmen’s Compensation Board properly lies in Kenton County. The trial court ruled that venue did not lie in Kenton County and dismissed the attempted appeal from the award of the Workmen’s Compensation Board.

The venue of appeals from awards of the Workmen’s Compensation Board is fixed by KRS 342.285, which provides, in pertinent part:

“ * * * but either party may, within twenty days after the rendition of such final award or order of the board, by petition appeal to the circuit court that would have jurisdiction to try an action for damages for the injuries if this chapter did not exist, for the review of such order or award, * *

Venue of actions for damages for personal injuries, which is the measuring rod prescribed in the just worded statute, is fixed by KRS 452.460, the applicable portion of which ⅛:

“Every other action for an injury to the person or property of the plaintiff, and every action for an injury to the character of the plaintiff, against a defendant residing in this state, must be brought in the county where the defendant resides, or in which the injury is done * *

It is conceded that the employer is a resident of Campbell County. The unusual nature of the claim has given rise to the question on appeal.

Appellee Dudgeon, an employee of appel-lee Fennell Company, Incorporated, has worked for many years at the trade of service and maintenance of furnaces. On July 25, 1963, Dudgeon worked for about eight hours on a “blower” and two units attached to it in Kenton County. Later that same night Dudgeon was stricken with chest pain and shortness of breath. He was taken to a hospital and placed in oxygen. In a day or two it was necessary that a tracheotomy be performed for Dudgeon. It is not necessary that we further detail the factual background for purposes of resolving the narrow issue at bar.

The Board’s findings recited that Dudgeon “ * * * is suffering from a respiratory condition which resulted in an injury to his heart and said injury so suffered arose out of and in the course of his employment with * * * Fennell Company as well as other companies mentioned in the evidence, at which the plaintiff had worked for a period of 37 years.” The Board further found that the disablement of Dudgeon cannot be conclusively stated to be a result of his last injurious exposure and employment period with the Fennell Company, “ * * * but was a result of his overall exposure during his employment with various companies over a period of 43 years previous to his filing his application for adjustment of claim.” The Board’s award was against the appellant, Special Fund.

We agree with the trial judge’s observation that none of our decisions is disposi-tive of the issue at hand. Those decisions cited below, and considered here are: Leep v. Kentucky State Police, Ky., 340 S.W.2d 600; Thacker v. R. F. Coal Company, Ky., 332 S.W.2d 532; Martin v. Cornett-Lewis Coal Co., Ky., 287 S.W.2d 164 and Browning v. Moss Williams & Co., 306 Ky. 520, 208 S.W.2d 495.

However, we disagree with the conclusion reached below. It is our view that KRS 342.285, considered in light of KRS 452.460, includes Kenton County as a proper venue in this factual situation. Under the claimant’s theory, accepted by the Board, the incident in Kenton County was the “last straw” that triggered Dudgeon’s disability. It is true that he had worked and been injuriously exposed in many other counties, but so far as this record indicates it was the Kenton County exposure that caused his inchoate disabling condition to manifest itself. Presumably, until the Kenton County incident — or in its absence— there would have been no disability.

We are mindful of cogent reasons advanced by the learned trial judge for an opposite conclusion, but it is our view that the construction here placed on the pertinent statutes comports with the prevailing policy expressed in KRS Chapter 342 and decisions of this court dealing with incidents “lighting up” or “triggering” latent or pre-existing conditions.

The judgment is reversed with directions to dispose of the appeal from the Board’s award upon the merits.


author: CLAY, Commissioner.

text:
    Wesley SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 17, 1966.
    Wesley Smith, pro se.
    Robert Matthews, Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

This is an appeal from an order overruling a motion to vacate the judgment in an RCr 11.42 proceeding. The motion was drawn up by a “penitentiary lawyer” reciting numerous grounds, with most of which appellant was unfamiliar. The trial court appointed counsel for the appellant and a full hearing was had on the claim that appellant’s constitutional rights were violated because of the negligence of his original court-appointed lawyer.

Like the other grounds of the motion, this one was shown to be without merit by the testimony of the appellant himself.

Appellant was charged with murder. He admitted killing his stepfather with two shots from a single-shot shotgun. He had only a few minutes of consultation with his appointed lawyer (admittedly a most able one) and thereafter pleaded guilty. His lawyer informed him of the possibility of the death sentence, but said he was willing to represent the appellant to the best of his ability if it took a week to try the case. He recommended that under the circumstances a plea of guilty was advisable. Appellant accepted this advice and was given a life sentence.

We agree with the trial court that appellant was adequately and competently represented by counsel. Under the circumstances of this ease the time consumed in consultation is not a controlling consideration. In Burton v. Commonwealth, Ky., 394 S.W.2d 933, we held that an opportunity to confer with appointed counsel for less than thirty seconds was adequate where the defendant knew of the charge against him and admitted his guilt. We have much the same situation here. Appellant was advised of his rights and the possible consequences of a not-guilty plea. There was nothing inadequate or negligent about his representation. Having elected to avoid the risk of a death penalty, with most incriminating evidence against him, appellant has shown no meritorious ground which would invalidate the judgment of conviction or the life sentence.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Lucye BROWN et al., Appellants, v. James E. BROWN et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    As Modified on Denial of Rehearing June 24, 1966.
    Donan & Vick, Robert E. Vick, Green-ville, for appellant.
    Jarvis, Cornette, Payton & Paxton, William E. Payton, Greenville, for appellees.
   WILLIAMS, Judge.

This action was brought by James E. Brown and his wife to quiet title in the oil and gas rights in an 84-acre tract of land in Muhlenberg County against the James H. Brown, Jr., heirs and the W. S. McDonald heirs. The pleadings created the issue as to which of the three sets of party litigants owns the oil and gas rights in the tract of land. The W. S. McDonald heirs and James E. Brown and wife signed an indenture agreement whereby it was stipulated that each of these party litigants owned one-half of the oil and gas rights. These two parties filed a joint motion for summary judgment which was sustained by the trial judge.

We are primarily concerned with three deeds: 1) In 1906 W. S. McDonald, owning fee simple title to the surface and minerals, conveyed the coal rights to Bassett; 2) On January 19, 1907, W. S. McDonald conveyed the property to James H. Brown, Jr. by deed, with the following reservation in the granting clause:

“ * * * and it is aliso (sic) understood that the mineral under the aforesaid land is sold and deeded to another party with all the privilidges (sic) stated in said mineral deed.”

3) On September 30, 1907, James H. Brown, Jr. conveyed the property to Midland Townsite Company by deed, with the following language appearing in the granting clause:

“ * * * and there is also reserved the mineral and mining rights under the said tract, they having been conveyed by a former deed.”

The joint appellees (W. S. McDonald heirs and James E. Brown and wife) claim title to the oil and gas rights through either the reservation clause in the deed from McDonald to James H. Brown, Jr., or through the chain of title from Midland Townsite Company.

The main issue on this appeal is whether the language in the granting clause in the deed from McDonald to James H. Brown, Jr., “* * * it is aliso (sic) understood that the mineral under the aforesaid land is sold and deeded to another party with all the privilidges (sic) stated in said mineral deed,” reserved to the grantor (McDonald) all the minerals or only the coal rights which had been previously sold.

Appellees contend that the reservation in the deed from McDonald to James H. Brown, Jr. was an effective reservation of all the minerals and not just the coal which had been conveyed previously. That contention is correct. The following cases are controlling on this issue: Bartley v. Rowe, Ky., 343 S.W.2d 140 (1961) ; Kelley v. Haas, Ky., 262 S.W.2d 687 (1953) ; Gibson v. Sellars, Ky., 252 S.W.2d 911, 37 A.L.R.2d 1435 (1952); Bolen v. Casebolt, 252 Ky. 17, 66 S.W.2d 19 (1933); and the language used in Hosbach v. Head, Ky., 284 S.W.2d 684 (1955). Language in Bartley v Rose, supra, applies exactly on point to the instant case:

“ * * * So it is our opinion that when an exception of minerals is placed in the granting clause it should not be construed as a limited or restricted exemption unless the language is clearly and positively restrictive.”

In the case at bar, the language does not meet the test of being clearly or positively restrictive. Here the “ * * * words simply add a descriptive fact about the mineral rights and in no sense are capable of the meaning that only so much of the rights as have been sold are reserved.” Bartley v. Rowe, supra, at p. 142. “The only thing he (grantor McDonald) possibly could reserve to himself would be the minerals not sold, so an exception in the granting clause normally would be intended to exclude them from the grant.” Bartley v. Rowe, supra, at p. 143.

Appellants argue that the trial judge was in error in sustaining appellees’ (James E. Brown and the McDonald Heirs) motion for summary judgment. There is no merit in this contention as there was no genuine issue as to any material fact, and the moving parties (appel-lees) were entitled to judgment as a matter of law. CR 56.03. Appellees had originally tried to sustain their title by proving adverse possession, but due to the finding of the court that the deed to James H. Brown, Jr. contained a reservation of all minerals, adverse possession was not a material issue. The only issue was the effect to be given the conveyances in the chain of title to the 84-acre tract. There is no requirement that the trial judge make findings of fact and conclusions of law on decisions for summary judgment under CR 56.

The trial court did not abuse its discretion in the assessment of costs.

The judgment of the trial court is affirmed.


author: GREENHILL, Justice. CALVERT, Chief Justice WALKER, Justice

text:
    Morin SCOTT d/b/a Tidelands Motor Inn, Petitioner, v. James LIEBMAN, Respondent.
    No. A-10939.
    Supreme Court of Texas.
    May 18, 1966.
    Rehearing Denied June 8, 1966.

      Baker, Botts, Shepherd & Coates, R. Gordon Gooch, Houston, for petitioner.
    Schwartz & Lapin, Houston, for respondent.
   GREENHILL, Justice.

James Liebman brought this action against Morin Scott, doing business as Tidelands Motor Inn in Houston, for personal injuries suffered when Liebman walked through a clear glass sliding door at the Tidelands Motor Inn at night. Trial was to a jury which convicted the defendant of negligence and exonerated the plaintiff of contributory negligence. The trial court, however, rendered judgment for the defendant notwithstanding the verdict upon the basis of one phase of assumed risk: that defendant had breached no duty to the plaintiff. The Court of Civil Appeals sitting at Corpus Christi reversed that judgment and rendered judgment for the plaintiff. 391 S.W.2d 540.

Many of the facts appear undisputed. Mr. Liebman’s room at the Tidelands was at ground level and had two entrances. One of the entrances was a sliding glass door. The glass was clear and polished. The lights were on inside the motel room. The lighting outside was subdued. There were no tapes, designs or markings to indicate the presence of the glass. The handle and lock were in the frame of the door. One of plaintiffs witnesses, tendered as a “glass door” expert, testified that the glass door was one of common design, and that 90% of sliding glass doors installed at or near the time of the construction of the Tidelands were of that design.

Mr. Liebman and his wife had been at the Tidelands a day or two. He had used the door on several occasions during the day or days they had been there. There was no evidence that he had previously used the glass door at night. But it is undisputed that he knew about the door, knew about the glass, knew how the door was constructed, and knew how it operated. He conceded that he knew that he would be injured if he walked into or through it when it was shut; i. e., he recognized that it would be dangerous to walk into a closed glass door, and he appreciated the danger. The problem is made difficult because it is undisputed that he did not know that the door was closed.

On the occasion in question, Liebman and some business acquaintances and their wives had gone out to dinner and had returned to Mr. Liebman’s room at the Tidelands. At about 9:30 p. m., Liebman desired to get a road map and some papers out of his car. He was a nonresident of Texas, and a friend offered to mark his road map for his return trip. The sliding glass door led to the parking area adjacent to Liebman’s room. So he opened the glass door, left it open, and proceeded to get his map and papers. Meanwhile, Mrs. Liebman felt chilled; so she shut the glass door. Liebman then proceeded to return to his room; and not seeing the glass door, he walked into it and was severely cut.

We regard the evidence as being undisputed that Liebman did not see the glass door in its closed condition. There is no suggestion that he did see it and nevertheless deliberately proceeded to walk through it anyway. One of the plaintiff’s witnesses, a business associate who was on the inside of Liebman’s room, testified that he and Liebman were looking at each other, eye to eye, as Liebman returned to the room; and Liebman proceeded as though the door were open.

Pictures introduced into evidence demonstrated that at night with the lights turned on inside the room, it is difficult from the darkened outside to detect the presence of the glass door in a closed position. There was evidence that there was a small amount of imperfection or warping in the glass; but it, too, is not easily detected. In short, this clear glass door in a closed position at night, under the circumstances here present, would not be regarded by us, in an abstract proposition, as an open and obvious danger of which we would charge people with knowledge.

The issues submitted to the jury, and its answers thereto were as follows: the defendant failed to use such appropriate design of the sliding glass door as would have been used by a person of ordinary care, and this was a proximate cause of plaintiff’s injury; the plaintiff Liebman did not fail to keep a proper lookout for his own safety; the plaintiff’s wife was not guilty of negligence in shutting the sliding door; it was not an unavoidable accident; and the plaintiff’s damages were $7,743.30.

The defendant does not have here points of error that there is no evidence to support the answers of the jury. Thus the portions of the trial upon the issues of negligence and contributory negligence ended favorably to the plaintiff. We turn now to the phase of assumed risk mentioned above. The defendant’s main position is that since plaintiff had knowledge of the condition [the clear glass door and how it worked], and since the plaintiff conceded knowledge and appreciation of the danger of walking through a closed glass door, the defendant owed the plaintiff no duty. The defendant relies upon A. C. Burton & Co. v. Stasny, 223 S.W.2d 310, Tex.Civ.App.1949, writ refused, and some subsequent opinions of the Courts of Civil Appeals, wherein this Court refused the applications for writs of error with the notation, “No Reversible Error”: Acme Laundry Co. v. Ford, Tex.Civ.App., 284 S.W.2d 745 (1955) ; Crawford v. Given Bros., Tex.Civ. App., 318 S.W.2d 123 (1958); and Raeburn v. City of Houston, Tex.Civ.App., 346 S.W.2d 488 (1961).

The leading case is Stasny. There an invitee, in the daytime walked out through a fixed plate glass window which was next to a door. The plaintiff had entered the store through the door next to the window. He knew the glass window was there. The opinion says he had “full knowledge of these facts,” but he forgot about the glass window. On his way out when some 30 feet from the window and the adjacent door, he ducked his head and without looking further walked into the window, broke it, and was injured. Having knowledge of the particular defect, which the court said was open and obvious, as it actually existed when the plaintiff walked into the glass, recovery was denied under the theory that the defendant was under no duty to the plaintiff and consequently had breached no duty to him.

We regard Stasny as being distinguishable. In Stasny, the plaintiff not only knew of the existence of the glass (he stated that he walked around it to enter the store), but he knew that it was in a fixed or closed position through which he could not-walk without injury. In Stasny, the glass was a static condition. Here it was not. Here the plaintiff knew of the glass; but there is no proof that he knew of the dangerous condition, to wit, the closed condition of the door. A piece of clear glass at night and under the circumstances here present is not so open and obvious as to require the court to charge a person, who walks through it, with knowledge of its presence. The opinion of the Court of Appeals for the Eighth Circuit in Jiffy Markets, Inc. v. Vogel, 340 F.2d 495 (1965), is persuasive on the invisibility of transparent glass at night as that question relates to “open and obvious.”

Perhaps Liebman should have known about, and should have seen, the closed glass door. Perhaps he should have ascertained that the door was still open before walking into the room. As indicated, these “should have known” and “should have appreciated” issues were the proper subjects of inquiry for the jury by issues of contributory negligence to be followed by issues of proximate cause. No such contributory negligence issues were requested.

Liebman had had some previous exposure to this glass door and its working. He had opened and closed it, and had walked through the entrance a number of times in the day or two he had been at the Tidelands. As stated, the proof is that these were daytime exposures. While it could be argued that after repeated observations and use of the glass door he knew how it looked in a closed position, there were not sufficient exposures at night here to charge him wtih such knoweldge as was done in Wesson v. Gillespie, 382 S.W.2d 921 (Tex.Sup.1964). Moreover, in Wesson the defect was a static condition.

Two of the three opinions by Courts of Civil Appeals previously mentioned are distinguishable upon the same basis as the Stasny case. In Acme Laundry Co. v. Ford, 284 S.W.2d 745, the plaintiff in the daytime walked through a fixed glass window or wall next to a glass door. The evidence is clear that the plaintiff knew about the fixed glass window. The court further stated that “there was no evidence that at the time of the accident they [the glass panels] were not perceptible.” Since plaintiff knew of the true conditions, it was held that he could not recover. The decision is further buttressed by a holding that as a matter of law, there was no evidence of primary negligence in the construction of defendant’s premises.

Similarly, in Raeburn v. City of Houston, 346 S.W.2d 488, the child in the daytime ran through a fixed plate glass panel next to a door. The opinion has, in fact, three grounds for its holding: (1) the court found no evidence of primary negligence on the part of the defendant city; (2) the child “without due care” ran through the building; i. e., the child was contribu-torily negligent; and (3) citing Stasny, there had been no breach of duty. As in Stasny, however, the child knew about the condition of the fixed glass (through which he ran) next to the door; but he forgot about it. If Mr. Liebman had closed the door in this case and it had remained closed, and he nevertheless walked back through it, it wrould more nearly come within the Stasny, Acme Laundry, and Raeburn cases.

The third case mentioned above is Crawford v. Given Bros., 318 S.W.2d 123. As we read the opinion, the basis of the opinion is the absence of primary negligence on the part of the defendant. Since the defendant’s building was “soundly and safely” built, the plaintiff was held not to be entitled to any warning concerning the glass paneling in the store. If there was no primary negligence, the “no duty” aspect of assumed risk was not properly reached.

Opinions from this and other jurisdictions are discussed in An Illusion of Space —The Glass Panel, by Norvell and Farmer, 29 Insurance Counsel Journal 633 (Oct. 1962); Glass Door and Panel Cases, 31 American Trial Lawyers Journal 98 et seq. (1965); and Annotation, “Liability of proprietor of premises open to public for injury occasioned by one walking into or colliding with glass or plastic door, panel or wall,” 68 A.L.R.2d 1204 (1959). This opinion has been based in part upon a consideration of those articles.

To review, then, the basic concepts of assumed risk (no duty) and to place this opinion in context with others by this Court, the following will be stated. The Court begins with the premise that the occupier owes a duty of ordinary care to his invitees. That duty remains unless it is in some manner discharged or removed.

Under the principles of assumed risk, the duty owed by an occupier to an invitee may be reduced to zero if the invitee assumes the risk or is held to have assumed the risk. This basic concept originated in the leading English case of Thomas v. Quartermaine (Ct. of Appeals) [1887], 18 Q.B.D. 685:

“The duty of an occupier of premises which have an element of danger upon them reaches its vanishing point in the case of those who are cognisant of the full extent of the danger, and voluntarily run the risk. Volenti non fit injuria.”

Stated differently, the cases say that the occupier owes no duty if the invitee has actual knowledge of the condition knowledge of the danger, and appreciation of the danger. Or, if the condition is so patently open and obvious that the plaintiff must have seen it, the Court will charge him with knowledge of the condition. It is sometimes stated that the plaintiff may not close his eyes to obvious conditions. Or, the duty is discharged if the occupier warns the invitee. The function of the warning is to give the invitee knowledge and an opportunity to appreciate the danger. Ellis v. Moore and Wardlaw, d/b/a Red Town Farm, Tex., 401 S.W.2d 789 (March 22, 1966). If with such knowledge and appreciation, or if after a warning, the plaintiff in the ordinary case nevertheless proceeds, the duty of the occupier is zero; i. e., the occupier no longer owes any duty to the invitee, and the invitee may not recover because he has assumed the risk.

Applying the above concepts to the facts of this case, we examine the possibilities by which the duty of the Tidelands (to use due care to make the premises safe or to warn Liebman) might have been discharged or removed so that it was no longer under any duty to the plaintiff. The ways which suggest themselves are (1) actual knowledge of the condition, knowledge and appreciation of the danger by the plaintiff, (2) constructive or charged knowledge and appreciation on the part of the plaintiff (either because the danger was patently obvious or because of repeated exposures), or (3) warning.

As to the first, we have held that Lieb-man had no actual knowledge of the condition. He conceded that if he had known of the condition — that the door was shut — he would have known and appreciated that it was dangerous. But he did not know of the condition.

As to the second, constructive or charged knowledge, we have held that the physical conditions at night were not so patently obvious as to require us to charge him with knowledge of the condition. Similarly, we have stated that Liebman had not had a sufficient number of previous exposures to the dangerous condition to charge him with knowledge of the condition. Whether he, as an ordinary prudent person under the circumstances should have seen the glass, or should have known of the condition, are issues of contributory negligence.

Or, as above suggested, the occupier may discharge his duty by warning the invitee (so as to give him knowledge and appreciation). The defendant does not contend that there was any warning; and it is not argued that a warning would have been unnecessary or useless except to say that a person does not need a warning if he knows of the conditions and knows and appreciates the danger. Whether he knew of the condition leads us back to whether there was actual or charged knowledge. We have held that there was none.

Therefore the duty of the occupier, Tidelands Motor Inn, was not discharged or removed. The duty remained. Since the jury found the defendant-occupier to be guilty of primary negligence and acquitted the plaintiff of contributory negligence, and since there was no removal or discharge of defendant’s duty, the trial court erred in entering judgment for the defendant notwithstanding the verdict of the jury.

This brings us to the question as to what judgment should be entered by this Court. The trial court entered a judgment for the defendant. The Court of Civil Appeals found this to have been an erroneous judgment, and with that conclusion we agree. Therefore we begin with an erroneous judgment of the trial court. The Court of Civil Appeals reversed and rendered judgment in favor of the plaintiff. Our problem is whether to affirm that judgment or to order a remand of the cause to the trial court in the interest of justice.

The “interest of justice” question is raised by the following circumstances. The trial of this case occurred before our decision in Halepeska, supra. Before that opinion and under Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954), the “should have known” and “should have appreciated” issues were considered at least by some to be issues of fact for the jury in assumed risk (“no duty” and volenti) cases. The statement in Robert E. McKee, General Contractor v. Patterson giving rise to that assumption was disapproved in Halepeska. Counsel for the defendant here tells us that in good faith and in reliance upon this Court’s opinion in McKee, he prepared and requested his “should have known” issue or issues as part of the “no duty” theory rather than as contributory negligence issues to be followed by issues of proximate cause. He therefore urges that his client has not been fairly treated when this Court changes the rules after the case has been tried.

The same thing occurred in Halepeska. But in Halepeska, the trial court had entered an errorless judgment. Since the trial court had entered an errorless judgment, this Court could not remand in the interest of justice. Davis v. Davis, 141 Tex. 613, 175 S.W.2d 226 (1943); Texas Employers’ Ins. Ass’n v. Brandon, 126 Tex. 636, 89 S.W.2d 982 (1936); City of Houston v. Blackbird, 394 S.W.2d 159 (Tex.Sup.1965).

Here, however, the trial court did not enter an errorless judgment. Assuming that other matters set out in the Rules such as 434 are satisfied, it is ordinarily the duty of the appellate court to render the judgment which the trial court should have entered. Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942).

However, both the Court of Civil Appeals and this Court, having found error in the judgment of the trial court, are authorized in a proper case to remand in the interest of justice. Both courts have discretion in this matter. Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951); Rule 434. Rule 505 specifically authorizes this Court to do so. This power constitutes an exception to the rule announced in the Le Master case cited above.

The Court of Civil Appeals did not remand in the interest of justice, but that does not preclude this Court from doing so. Southampton Civic Club v. Couch, 159 Tex. 464, 470, 322 S.W.2d 516, at 520 (1959) (on rehearing) ; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). We therefore hold that this Court does have the power to remand in the interest of justice, and we have concluded that this is a proper case in which to exercise that power.

The judgments of the courts below are reversed, and the cause is remanded to the district court for a new trial.

GRIFFIN, WALKER, HAMILTON and STEAKLEY, JJ., dissent.

CALVERT, Chief Justice

(concurring).

I concur in the judgment entered. I do so under the rule announced in Halepeska v. Callihan Interests, Inc., Tex.Sup., 371 S.W. 2d 368, 378 (1963), defining the duty of an occupier of land to his invitees, as follows:

“If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them ‘no duty’ to warn or to protect the invitees. This is so, the cases say, because there is ‘no duty’ to warn a person of things he already knows, or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof.”

WALKER, Justice

(dissenting).

I respectfully dissent. In my opinion this case is ruled by A. C. Burton Co. v. Stasny, Tex.Civ.App., 223 S.W.2d 310 (wr.ref.); Acme Laundry Co. v. Ford, Tex.Civ.App., 284 S.W.2d 745 (wr.ref.n.r.e.) ; and Crawford v. Given Bros., Tex.Civ.App., 318 S.W.2d 123 (wr.ref.n.r.e.). In so far as the question of duty is concerned, it seems to me that there is no material distinction between a fixed glass in an aperture so constructed as to have the appearance of an open door and a sliding glass door which appears to be open when it is closed. There is as much reason to anticipate that an inattentive guest would attempt to walk through the one as the other, and anyone who tries to walk through either will probably be injured. Only one basic difference occurs to me: the visitor could pass unharmed through the doorway if the door happened to be opened but would have no chance whatsoever of getting safely through the fixed glass. I do not see how the cited cases can be distinguished, as the Court says, on the ground that the evidence there failed to show primary negligence in the construction of the premises when that is the very question with which we are here concerned.

It also might be well to observe that this Court has never stated that the occupier of premises owes a duty of ordinary care which “remains unless it is in some manner discharged or removed.” In Halepeska v. Callihan Interests, Tex.Sup., 371 S.W.2d 368, we said that “in a suit by an invitee against the occupier, the invitee must not only prove that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but he must also prove, as part of the plaintiff’s case, that the occupier owed him a duty to take reasonable precautions to warn him or protect him from such danger.”

The Court seems to base its holding, in the last analysis, on the fact that respondent did not have actual knowledge that the door he left open was closed. It fails, in my opinion, to consider and give proper weight to the knowledge with which respondent should be charged as a matter of law. Respondent testified that he knew he would probably be injured if he walked into the closed glass door. He knew that the door was made of clear and polished glass. He also knew that the handle and lock were in the frame, and that there were no tapes, designs or markings on the glass. He further knew that the door was made to open and close. He had used it for that purpose, and he certainly must have known that a door once opened does not necessarily remain open indefinitely. Respondent knew that the interior of the room was well lighted, and that the exterior lighting was subdued. If he did not realize that it was difficult to detect the presence of the glass from the outside under these circumstances, it seems fair that he should be charged with knowledge possessed by every child who has looked through a glass window at night from the darkened lawn into a lighted room of his home.

It is true that respondent did not know that the door he opened had been closed by his wife, but neither did petitioner. Respondent knew as much about the condition of the premises as petitioner knew or might have learned through the exercise of ordinary care, and in my opinion he is charged in law with appreciation of the danger encounted in using the glass door as he did. I would reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

GRIFFIN, HAMILTON and STEAKLEY, JJ., join in this dissent.

      . In fairness to able counsel for the defense, this trial occurred, and the issues were prepared and submitted, before our opinion in Halepeska v. Callihan Interests, Ine., 371 S.W.2d 368 (Tex.Sup.1963). This problem -will be dealt with later in this opinion in ordering a remand for a new trial.

      . For example, Robert E. McKee, General Contractor v. Patterson, 163 Tex. 517, 271 S.W.2d 391 (1954); Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R. 2d 853 (1950); Harvey v. Seale, 362 S.W.2d 310 (Tex.Sup.1962); Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951); Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449 (1959); Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Western Auto Supply v. Campbell, 373 S.W.2d 735 (Tex.Sup. 1963); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963); Ellis v. Moore and Wardlaw d/b/a Red Town Farm, Tex., 401 S.W.2d 789 (March 22, 1966).

      . All rules referred to are Texas Rules of Civil Procedure.


author: GRIFFIN, Justice.

text:
    The STATE of Texas, Petitioner, v. Tom D. EASLEY et al., Respondents.
    No. A-10830.
    Supreme Court of Texas.
    June 15, 1966.

      Waggoner Carr, Atty. Gen., Austin, Hawthorne Phillips, Stanton Stone, T. B. Wright, Watson C. Arnold, Woodrow Curtis and Robert D. McGee, Asst. Attys. Gen., for petitioner.
    H. A. Coe, Kountze, for respondents.
   GRIFFIN, Justice.

This is a suit brought by the State of Texas, as plaintiff, against Tom D. Easley et al., as defendants, in a district court of Hardin County, Texas, in the nature of a trespass to try title action. The land sued for was that portion of a 2.115-acre tract near Kountze, Texas, within the limits of the right-of-way of State Highway No. 40, later also known as Highway No. 69, between Kountze and Woodville, Texas.

All parties have treated this suit as having been disposed of by a summary judgment rendered by the district judge in favor of defendants and in a hearing on motion for summary judgment filed by the plaintiff and a separate motion filed bv the defendants. The judgment entered by the trial court denied plaintiff’s motion and granted the defendants’ motion and rendered judgment for the defendants. On appeal, the Court of Civil Appeals reformed- and affirmed the trial court’s judgment. 390 S.W.2d 24.

We reverse the judgment of both courts below and remand the cause to the trial court with instructions to render judgment for the plaintiff, The State of Texas.

In addition to the “pleadings, depositions and admissions on file, together with affidavits, if any” as specified by Rule 166-A, Texas Rules of Civil Procedure, the parties introduced extrinsic evidence consisting of a portion of the Minutes of the Commissioners Court of Hardin County, Texas, September 12, 1960; numerous maps or plats of the highway area involved; a certified copy of a part of the proceedings in Cause No. 1342 in the County Court of Hardin County, Texas; the conveyance from the State to Hardin County of a 1.64-acre tract within the old highway right-of-way; the dissolution instruments of the old Olive-Sternenberg Lumber Company; and a deed from Cecil Smith et al. to defendant Tom D. Easley, describing the 2.115 acres of land, which includes the land in controversy. None of the items enumerated in the above sentence were attached “thereto or served therewith” of either of the affidavits supporting either party’s motion for summary judgment. A reading of Rule 166-A demonstrates that none of these instruments was entitled to consideration in a summary judgment hearing. The trial court’s judgment recites that extrinsic evidence was heard and the trial court filed findings of fact and conclusions of law. None of these has any place in a summary judgment proceeding.

The facts giving rise to this litigation are as follows: In 1938 the Highway Commission relocated Highways 40 and 69 at the place where this land is situated. To do this, the State needed additional land for right-of-way. Olive-Sternenberg Lumber Company, a corporation, owned the land, and on June 11, 1938, by warranty deed containing no restrictions or reservations, conveyed to the State of Texas two tracts of land aggregating 33.61 acres. The deed granted and sold, and the habendum and warranty clauses covered, the fee simple title to this land. The preliminary description in the deed recites: “ * * * said strips of land lying within the limits of the right-of-way of the proposed relocation, widening and improvement of State Highway No. 40 in Hardin County, Texas.” At the end of the metes and bounds description of each of the tracts, the following appears: “ * * * containing * * * acres of land for right-of-way purposes,” of which a certain number of acres were in the old right-of-way and a certain number of acres were new right-of-way. This deed conveyed to the State of Texas a fee simple title to the land therein described. Texas Electric Ry. Co. v. Neale, 151 Tex. 526, 252 S.W.2d 451 (1952).

To divest title to the land sued for herein, defendants rely on Art. 6674q-9, Vernon’s Texas Civil Statutes. That portion relied upon reads as follows: “ * * * provided that when the right-of-way, or any part thereof, pertaining either to a State Highway or a lateral road, has been abandoned because of the abandonment of such road for all public purposes, and such right-of-way, or any part thereof, was donated by the owner of the land for right-of-way purposes, then, and in that event, the title to the said right-of-way shall vest in said owner, his heirs or assigns * * *.” Defendants have a general warranty deed dated September 29, 1956, from Cecil Smith, E. W. Tubb, L. M. Feagin and E. G. Lindsey, conveying the 2.115 acres of land out of which the land in controversy is a part.

The State, on the other hand, contends that Article 6674q-9 is not applicable to the case at bar, but that it is controlled by Article 6673a, Sec. 1, Vernon’s Texas Civil Statutes. As affecting our problem, that statute provides: “Section 1. Whenever the State Highway Commission determines that any real property, or interest therein, heretofore or hereafter acquired by the State for highway purposes, is no longer needed for such purposes, and in the case of highway right-of-way it has further determined that such right-of-way is no longer needed for use of citizens as a road, the State Highway Commission may recommend to the Governor that such land or interest therein be sold, and the Governor may execute a proper deed conveying all the State’s rights, title and interest in such land.” The Highway Commission has “the duty * * * to determine the fair and reasonable value of the State’s interest in such land and to advise the Governor thereof.” * * * “Provided further, that upon recommendation of the State Highway Commission the Governor may execute a proper deed relinquishing and conveying the State’s right, title and interest in such real property as follows:

“(a) If title to the State was acquired by donation, convey to the grantor, his heirs or assigns * * (Emphasis added.)

Sec. 5 of Art. 6673a provides: “The Attorney General shall approve all transfers and conveyances under this Act, and in no event shall the right of the State of Texas to full and exclusive right of possession of all retained rights-of-way he infringed or lessened in any manner thereby. ⅜ * * ” (Emphasis added.)

Before the State’s interest and title to land acquired for highway purposes may be transferred out of the State, four things under Art. 6673a are necessary: (1) The State Highway Commission must determine that the property theretofore acquired for highway purposes is not longer needed for such purposes; (2) the Commission must recommend to the Governor that the land be sold, advising as to the fair and reasonable value of the land or interest therein; (3) the Governor must execute a proper deed conveying the State’s right, title and interest in the land; and (4) the Attorney General shall approve all transfers and conveyances under this Act.

The record in this case fails to show that either or all of the four requisite actions have been taken. Therefore, if Art. 6673a is applicable to our cause, the title to the land in controversy is now in the State.

Art. 6673a was last amended by the 53rd Legislature (1953) at its regular session by Chapter 323, found on page 795, Sessions Acts. The general heading is “State Highway Commission — Property not Needed for Highway Purposes — Sale.” The caption to the Act provides it is an Act amending then Art. 6673a, Vernon’s Texas Civil Statutes; and provides for the method of disposition of any real property or interest therein whenever the Highway Commission determines that such property is no longer needed for highway purposes, and providing that the Commission shall make its recommendation to the Governor that such lands be sold; providing for sale on sealed bids; for notice of sale to be given, and that the Governor upon recommendation of the Highway Commission may execute a deed conveying such property or interest needed by the State for highway purposes, or relinquishing or conveying such property; and providing that all transfers shall be approved by the Attorney General.

Section 1 of this Act sets out in detail how property determined by the Highway Commission may be sold, and a deed “may be executed by the Governor.” The Act is a comprehensive Act covering the disposition of property the Commission has determined is no longer needed for highway purposes. The Act further provides that “all laws and parts of laws in conflict with the provisions of this Act be, and the same are hereby repealed.”

Art. 6674q-l et seq. was last amended in 1943 by the 48th Legislature, Regular Session p. 494. The title of this Act is “Road Bond Assumption Act.” Its caption does not contain one word regarding disposition of highway right-of-way abandoned or no longer needed by the State for highway purposes. The caption declares the policy of the State with reference to building, maintaining and financing state-designated roads and roads which are ancillary to but are not state-designated highways; provides for the creation of a Board of County and District Road Indebtedness, and its powers, methods of operation; allocation and distribution of the gasoline tax levied by the State; providing a penalty for falsifying any report or certificate required and containing many other provisions as to raising and expending the funds provided by this Act.

Section 10 of this Act (codified by Vernon’s Texas Civil Statutes as Art. 6674q-9) provides for the (a) vesting of fee simple title in the State of all roads, roadbeds, bridges and culverts in a county or defined road district in the State and (b) vesting of fee simple title in the State to lateral roads in the same manner and under the same conditions, but providing possession of such lateral roads to remain in the county or road district. Then comes this clause: “ * * * provided that when the right-of-way, or any part thereof, pertaining either to a State Highway or lateral road, has been abandoned because of the abandonment of such road for all public purposes, and such right-of-way, or any part thereof, was donated by the owner of the land for right-of-way purposes, then, and in that event, the title to said right-of-way shall vest in said owner, his heirs or assigns.” The Act continues further with provision for the Commissioners Court assuming jurisdiction over any changed or abandoned State Highway in their county.

The above-quoted provisions of Art. 6674q-9 are in conflict with the provisions of Art. 6673a regarding disposition of highway rights-of-way no longer needed by the State or the general public for highway purposes.

Although there is no provision in Art. 6673a specifically repealing any part of Art. 6674q-9, the language of the two Acts insofar as they affect abandoned rights-of-way of state highways or lateral roads and the title thereof are in direct conflict. Art. 6674q-9 states than when there has been an abandonment of donated right-of-way land, the title shall vest in the donative owner, his heirs and assigns.

Art. 6673a makes provision for a determination by the State Highway Commission that the land is no longer needed and prescribes the steps to be taken to divest title out of the State. One provision covers conveyance by the Governor to the donative owner, his heirs and assigns, subject to the approval by the Attorney General of the conveyance. There is such a conflict in the two provisions that both of them cannot stand. Art. 6673a is the last expression of the Legislature on the subject and is the controlling provision.

The rule of law applicable is stated in the case of Commercial Credit Co., Inc. v. American Mfg. Co. et al. (Tex.Civ.App., 1941), 155 S.W.2d 834, 839, writ refused, as follows:

“We are not unaware of the general rule of law in this State which holds that repeals by implication are not favored. But as early as Rogers v. Watrous, 8 Tex. 62, 58 Am.Dec. 100, and by numerous cases on down to recent dates, it was announced that subsequent statutes revising the subject matter of former ones, and evidently intended as a substitute for them, although containing no express words to that effect, must operate to repeal those going before. This rule was followed by the Commission of Appeals in First Nat. Bank v. Lee County Cotton Oil Co., 274 S.W. 127, where the authorities are collated over a period of seventy-five years. See also Meek v. Wheeler County, 135 Tex. 454, 125 S.W. 2d 331, approved by the Supreme Court, 135 Tex. 454, 144 S.W.2d 885.” See also Gaddis v. Terrell, Land Commissioner, 101 Tex. 574, 110 S.W. 429 (1908).

The general repealing clause of Art. 6673a repeals that portion of Art. 6674q-9 with regard to title to an abandoned highway right-of-way. 53 Tex.Jur.2d, Sec. 96, page 141 idem. Sec. 101, p. 149.

The State Highway Commission has been entrusted by the Legislature with the construction and maintenance of an adequate highway system; it is the agency determining the need for land for rights-of-way, determining the location and change of all state highways; therefore, a better working system will result for the Commission to be the agency to determine when rights-of-way no longer needed may be disposed of and to make recommendations to the Governor as to his executing deeds conveying the same. These deeds may be placed of record and notice given of the status of titles.

We hold that Article 6673a is the controlling Article as applied to this case, and the State’s title to the land in controversy herein is the superior title.

The judgments of both courts below are reversed and this cause is remanded to the trial court to render a judgment for the State in accordance with this opinion.

NORVELL, J., concurs in the result.

SMITH, J., not sitting.


author: STEAKLEY, Justice. POPE, Justice

text:
    Billy Earl LOPER, Petitioner, v. Lula ANDREWS, Individually and as next friend of Charles Andrews, a minor, Respondent.
    No. A-11188.
    Supreme Court of Texas.
    May 25, 1966.
    Rehearing Denied July 13, 1966.

      Jones, Boyd, Westbrook & Lovelace, L. Wayne Scott, Waco, an appeal with above firm, for petitioner.
    Reagan & Welch, Thomas Bartlett, Marlin, with above firm, for respondent.
   STEAKLEY, Justice.

We granted writ of error in this case to review the problem of the admissibility under Article 3737e of medical opinion entries in hospital records. Initially, however, we consider the view of the Court of Civil Appeals [395 S.W.2d 873] that the objection leveled at the records here involved was insufficient to preserve this point for review.

The following resume will present the two problems. Respondent, individually, and as next friend for Charles Andrews, sued Petitioner in a personal injury action for damages resulting from an automobile collision. Judgment in her favor was affirmed by the Court of Civil Appeals. A controlling question for reasons later discussed was whether the boy suffered a skull fracture in the accident. Dr. R. B. Swetland was the treating physician and through him Respondent offered in evidence certain hospital records, the entries of which were made over his signature. The entry in question read: “I have referred him to Dr. Hutchings for examination and again he finds a papilledema of the left optic disc of about two diopters. This, he believes, is definitely the result of a fracture of the base of the skull, and some left optic nerve pressure. This [is] probably attributable to the automobile accident suffered October 5, 1963.”

When the hospital records were tendered by counsel for Respondent to counsel for Petitioner, the latter stated to the trial court, “If the court please, with the exception of one thing, I would agree. * * * I object to this as not being an opinion of the doctor himself. Just this one sentence here. I object to that one sentence. Otherwise I don’t have any objection. * * * I object because it is the opinion of another doctor.” Later, upon the actual offer of the records, counsel for Petitioner in making his objection read the entry in question to Dr. Swetland, who was on the witness stand, and this colloquy follows: Question: “That sentence includes the opinion of Dr. Hutchings?” Answer: “Yes.” Question: “What he told you?” Answer: “Yes, sir.” Thereupon this objection was stated: “We object to that portion of these records. I have no objection to the rest of it. I object on the basis that although it is a hospital record, it includes the opinion of another doctor not here for cross-examination. And, if I understand the law correctly, medical records are admissible so long as they do not contain opinion of a doctor not present and subject to cross-examination. I have no objection to the rest. * * * ”

The only sentence in the entry carrying an opinion of Dr. Hutchings is the sentence, “This, he believes, is definitely the result of a fracture of the base of the skull, and some left optic nerve pressure.” The previous sentence, “I have referred him to Dr. Hutchings for examination, and again he finds a papilledema of the left optic disc of about two diopters” is a statement of a factual finding. The final sentence, “This [is] probably attributable to the automobile accident suffered October 5, 1963” does not purport to be the statement of Dr. Hutch-ings.

We will regard the objection as sufficient, although we recognize with the Court of Civil Appeals that it is subject to some doubt whether the objection pointed the court and opposing counsel to the question of whether the record, otherwise admissible under Article 3737e notwithstanding its hearsay nature, was rendered inadmissible to the extent of the opinion entry attributed to Dr. Hutchings. In Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex.Sup.1962), there was only the general objection “that the records were not properly proven up, and that they were hearsay,” but we wrote upon the question of the admissibility of a hospital record containing an entry not within the personal knowledge of the hospital personnel.

Certain other preliminary matters will be noted. Counsel for Petitioner stated in oral argument that the statutory predicate is satisfied here, i. e., both Dr. Swetland and Dr. Hutchings were members of the hospital staff. Nor is any point made that it was not the regular procedure of the hospital for a staff physician such as Dr. Swet-land to refer a patient for a particular examination and diagnosis to another staff member such as Dr. Hutchings, and for the latter to transmit his diagnosis for recordation in the hospital records. It is settled that Article 3737e applies to hospital records and that the statute creates an exception to the hearsay rule deemed justified notwithstanding the deprivation of the right of cross-examination.

We turn to the problem of the case. Article 3737e, as here pertinent, provides:

“Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:
“(a) It was made in the regular course of business;
“(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
“(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.
⅝ ⅜ ⅜ ijc * ⅜⅛
“Sec. 4. ‘Business’ as used in this Act includes any and every kind of regular organized activity whether conducted for profit or not.”

There are two direct expressions by this Court construing Article 3737e with respect to hospital records. In refusing the application for writ of error in Travis Life Insurance Co. v. Rodriguez, Tex.Civ.App., 326 S.W.2d 256 (1959), we said by per curiam opinion, 160 Tex. 182, 328 S.W.2d 434: “It is our view that the statute has been correctly construed by that court * * *.” Against a hearsay objection, the Court of Civil Appeals construed Article 3737e “so as to authorize the admission in evidence of the hospital records, including the diagnosis of leukemia shown thereon, proved and admitted in evidence in this case.” The opinion clearly rested on the assumed fact that a diagnosis of leukemia is not one about which physicians ordinarily differ. So the problem of the admissibility of hospital records containing diagnoses resting substantially on the expert opinion of a doctor and partaking of controversy was not reached. See Murray, Admissibility of Hospital Records — A Continuing Problem, 29 Tex.B.J. 163, 211 (1966).

In Skillern & Sons, Inc. v. Rosen, supra, we said: “Some employee or representative who either made the record or transmitted the information to another to record must have had personal knowledge of the act, event or condition in order for such record to be admissible under the business records exception to the hearsay rule.” The statutory requirement of personal knowledge, apparently unique to the Texas statute, was held to exclude a statement in a hospital record from an outside source — a volunteer —as to how the accident happened. This does not reach our problem here since Dr. Swetland and Dr. Hutchings were members of the hospital staff and were acting in accordance with the regular procedure of the hospital.

It appears that the Courts of Civil Appeals have under various circumstances construed our per curiam opinion in Rodriguez as a holding that hospital records containing disputable, opinion entries are admissible under Article 3737e. See State Automobile & Casualty Underwriters v. Reagan, Tex.Civ.App., 337 S.W.2d 522 (1960, no writ hist.) ; Missouri-Pacific R. Co. v. Watson, Tex.Civ.App., 346 S.W.2d 640 (1961, writ ref. n. r. e.) ; White v. McElroy, Tex.Civ.App., 350 S.W.2d 249 (1961, writ ref. n. r. e.); Western Fire Indemnity Co. v. Bradshaw, Tex.Civ.App., 356 S.W.2d 832 (1962, writ ref. n. r. e.) ; Texas Employers’ Ins. Ass’n v. Dennis, Tex.Civ.App., 372 S.W.2d 559 (1963, writ ref. n. r. e.); Weaver v. Swofford, Tex.Civ.App., 386 S.W.2d 624 (1965, no writ hist.); Goshorn v. Hattman, Tex.Civ.App., 387 S.W.2d 422 (1965, writ ref. n. r. e.); St. Paul Fire & Marine Ins. Co. v. Haynie, Tex.Civ.App., 389 S.W. 2d 488 (1965, no writ hist.). The opinion of the Court of Civil Appeals in Watson is representative; it was there said: “We conclude, however, that the opinion and the Supreme Court’s approval of the opinion [referring to Rodriguez] may not be so limited [that diagnostic reports are admissible only in cases where the diagnosis is one about which physicians do not ordinarily differ].” The Court of Civil Appeals, however, then held that “The exclusion of the diagnostic report in any event was harmless” with which we were in agreement. So our refusal of the application for writ of error with the notation, “no reversible error,” reserved the question. The same reservation and for the same reason is implicit in our refusal of the application for writ of error in the other cases listed above.

Prior to Rodriguez, it was held in Martinez v. Williams, 312 S.W.2d 742 (Tex. Civ.App. 1958, no writ hist.), that the statement by a physician consisting of an opinion based upon medical findings of conditions not obvious or patently observable to persons generally should be excluded; and that in such a case the doctor should be brought into court where he would be subject to cross-examination by opposing counsel. Martinez did not come to this Court for review but was followed in Texas Employers’ Ins. Ass’n v. Odom, 371 S.W.2d 429 (Tex.Civ.App.1963, writ ref. n. r. e.). In Odom, however, the Court also held the admission of the records harmless in view of the personal testimony at the trial of the same doctor whose opinion was carried, in the hospital records under attack.

Aricle 3737e says that a record of an act, event or condition shall be competent evidence of the occurrence of the act or event or the existence of the condition when the statutory conditions to admissibility are otherwise present. The problem here is whether the recorded entry of a medical diagnosis can qualify as a memorandum or record of a condition and as competent evidence of the existence of the condition described therein. Medical diagnoses analyze the cause and nature of a patient’s condition and may be classified into three broad types. The medical facts may be such that the medical condition is apparent and observable by all. Or, the facts and findings may be such that an expert interpretation is required but the medical condition is nevertheless well recognized and reasonably certain. Or, the facts and findings may be such that their meaning and the resulting medical opinion as to the patient’s condition rests primarily in expert medical opinion, conjecture and speculation. A severed limb or an open wound illustrates the first and states the obvious. The diagnosis of leukemia in Rodriguez illustrates the second. Leukemia was considered to be an affliction subject to reliable diagnosis and as not partaking of opinion or conjecture in any consequential sense. We were of the view that such a recorded diagnosis could properly be said to be within the statutory contemplation of a record of a condition and as competent evidence of the existence of the condition. A third situation is represented by the opinion entry here and was also illustrated by references in the Rodriguez opinion to consideration of the problem in other cases. In approving the Rodriguez construction of the statute we did not hold that diagnostic entries in hospital records may be considered as competent evidence of the condition they describe where they are genuinely disputed and necessarily rest largely in expert opinion, speculation or conjecture.

A witness is generally permitted to testify only to facts within his personal knowledge. He does not have to possess special qualifications to do so. He is not permitted to express an opinion since this invades the province of the trier, of the facts. An exception to the personal knowledge prerequisite is represented by the testimony of a qualified expert in the expression of an opinion in the field of his qualifications. This is permitted because experts are considered to have a special knowledge not generally possessed by jurors and are better able to draw conclusions from the facts than the jurors. The diagnosis or medical opinion of a doctor is an example. Such testimony is in the nature of an expert opinion based on the application of the expertise of the doctor to the facts within his knowledge. The opportunity of cross-examination is unusually important to adversely affected parties. We do not read Article 3737e as purporting to render entries of such character admissible without exception; we construe the statute as doing so only in those instances where it can be said that the diagnosis records a condition resting in reasonable medical certainty.

The opinion and conjectural nature of the important sentence in the entry in question here is self-evident. The finding is that the boy suffered a “papilledema of the left optic disc of about two diopters.” The medical opinion attributed to Dr. Hutchings is that “he believes” that such condition resulted from “a fracture of the base of the skull, and some left optic nerve pressure.” The entry does not purport to rest upon demonstrable medical facts and was the subject of genuine dispute between the doctors. It is an expert conjecture of Dr. Hutchings on the question of whether or not the boy suffered a skull fracture and in our view is lacking the requisite medical certainty to qualify under Article 3737e.

We are of the further opinion, however, that the admission in evidence of the hospital record with the inadmissible opinion entry of Dr. Hutchings was not reversibly harmful to Petitioner under Rule 434, Texas Rules of Civil Procedure. This follows from an analysis of the crucial issue in the case and the evidence relating thereto. The boy was involved in the automobile accident in question and was thereafter found to be suffering from a vision impairment and related symptoms. It was shown and appeared not to have been disputed that the indicated fracture of the skull would cause the vision impairment. It was further established that for the accident to have caused the vision impairment the boy must have sustained a blow at the base of the skull causing a skull fracture. The skull fracture would cause the formation of scar tissue and the building up of intercranial pressure which, in turn, would cause damage to the optic nerve resulting in the vision impairment. The crucial question thus became whether or not the boy sustained a skull fracture in the accident. If he did, the accident was the cause of the vision impairment. Dr. Swetland was the only doctor who personally testified on this issue in the trial of the case. It was his opinion that the injury to the boy was “from a blow at the floor of the skull that at the time of this accident Charles had in the accident and the concussion which he had. * * * that there was some hemorrhaging somewhere along the optic nerve that supplied the left eye. And that this persisted in the formation of scar tissue. That this scar tissue is present now, causing a pressure on the optic nerve, and also causing a pressure on the venules drainage of the eye.” He admitted on cross-examination, however, that the vision impairment such as that suffered by the boy could have been the result of a birth defect not necessarily connected with the injury suffered in the automobile accident. It was Dr. Swetland’s theory that the accident could have been the producing cause of the optic nerve damage only if the boy received a skull fracture sufficient to form scar tissue. In an effort to determine the existence or not of a skull fracture Dr. Swetland referred the boy to two doctors for examination and study. One was Dr. Hutchings; the other was Dr. J. A. Pettigrew, a neurosurgeon. Dr. Pettigrew’s report, which was offered in evidence by Petitioner, carried the entry “Neurological examination is negative.” Dr. Swetland stated that this meant that Dr. Pettigrew did not find optic nerve damage or damage to the nerve pathways within the brain system and was, in effect, a finding that the boy had not suffered a skull fracture. In summary, the jury heard the personal testimony and opinion of Dr. Swet-land that the boy suffered a skull fracture in the accident which under the medical testimony was the cause of the injury from which the boy was suffering. Dr. Petti-grew reported that he could not find evidence of a skull fracture; a contrary report was that of Dr. Hutchings. Thus there was a standoff between the two reports received in evidence and the diagnoses of the two referral doctors shown by the reports. It would necessarily follow, in our opinion, that the controlling influence on the jury was the expert testimony of Dr. Swetland who testified in person and was subjected to direct and cross-examination. It is not reasonably probable that the opinion entry attributed to Dr. Hutchings persuaded the jury to its verdict when it was offset by the report of Dr. Pettigrew and when the matter was developed in great detail by the personal testimony of Dr. Swetland before the jury.

We agree with the disposition by the Court of Civil Appeals of Petitioner’s other points of error and its judgment is affirmed.

POPE, Justice

(concurring).

Dr. Hutchings, a member of the hospital staff, examined the injured boy upon request of Dr. Swetland, another staff member. In recording the results of the examination, Dr. Swetland wrote the one sentence which is the subject of this appeal. That sentence was: “This, he (Dr. Hutch-ings) believes, is definitely the result of a fracture of the base of the skull, and some left optic nerve pressure.” As stated in the majority opinion, nothing else in the hospital record was objectionable.

The majority, in holding that opinion testimony should be excluded, has announced a new exclusionary rule with respect to medical opinions. The Court treats expert medical opinion as speculation or conjecture in spite of medical evidence to the contrary. The majority says that because there was a dispute between the doctors who examined the injured boy, the diagnostic entries “necessarily rest largely in expert opinion, speculation or conjecture.”

When a doctor gives his expert opinion about medical causes lawyers and judges, who are not medical experts, are bold indeed to say that the evidence is mere conjecture or speculation. Dr. Swetland’s entry in the hospital records was that Dr. Hutchings “ * * * believes * * * definitely * * * ” that the condition resulted from a fracture of the base of the skull. The evidence did not relate to the future, in which case the doctor would be limited to probabilities in the expression of his opinion. We exclude this evidence though the doctor said, “I definitely believe.” The predicate for admission of this opinion evidence was laid.

The real basis for the exclusion is that the non-expert Court believes that the evidence was speculative. If it be such, Dr. Swetland and Dr. Hutchings did not so state. The Court in this case, and apparently for the future, has committed itself as an overseeing expert to pass upon medical conditions, diseases, treatments, prognoses, and to announce to both the medical and legal professions, which medical opinions are sound and which are conjectural. I would leave this to the doctors. 2 McCormick & Ray, Texas Law of Evidence, § 1427.

I concur in the result.

SMITH, J., joins in this opinion.

      . The reference is to the Article number as carried in Vernon’s Annotated Texas Civil Statutes.

      . Cf., Thomas v. Hogan, 308 F.2d 355,. 360-361 (4th Cir. 1962), where the Court said:
      “We read the statute as applying a presumption that diagnoses and scientific tests are properly made by qualified personnel, if the recorded information re-fleets usual routine of the hospital and if it is the practice to record such data contemporaneously or within a reasonable time. For example, a recorded diagnosis that a patient had pneumonia would be admissible, but a diagnosis of a rare disease might not, since it would not be one routinely made by the hospital personnel. Likewise, a record entry of a commonly performed blood test would be admissible, while an entry of the result of a scientfic test infrequently done might not. When the two statutory requirements have been met, it makes no difference whether the record reflects an expression of medical opinion or an observation of objective fact. As said by Judge Parker in Long v. United States, 59 F.2d 602, 603 (4th Cir.1932):
      “ ‘The diagnosis is the opinion of a scientific expert who has examined [a patient], heard his statements, and observed his symptoms. It approximates a statement of faet, being in reality what the physician observes when he views Ea patient] with the trained eye of an expert.’ ”


author: PER CURIAM.

text:
    Ralph E. TUNNELL et ux., Petitioners, v. OTIS ELEVATOR COMPANY et al., Respondents.
    No. A-11435.
    Supreme Court of Texas.
    June 22, 1966.
    Rehearing Denied July 13, 1966.

      Huff & Bowers, Robert W. Gauss, with above firm, Lubbock, for petitioners.
    Crenshaw, Dupree & Milam, Max C. Addison, with above firm, Lubbock, for respondents.
   PER CURIAM.

The opinion of the Court of Civil Appeals in this case is reported in 400 S.W.2d 781 (1965). The application for writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure. This action is not, however, to be taken as an approval of the holding of the Court of Civil Appeals that a charitable organization engaged in non-charitable, profit-making activities is entitled to immunity from tort liability under the rule of law announced in Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749 (1943) and followed in Watkins v. Southcrest Baptist Church, 399 S.W.2d 530 (Tex.Sup.1966).

The trial court granted a motion for summary judgment in favor of respondent, Northwest Texas Conference of the Methodist Episcopal Church. The claim against respondent, Otis Elevator Company, was severed and a final judgment was entered on November 4,1963. No appeal was taken from this judgment. On May 11, 1964, a judgment nunc pro tunc was entered declaring the earlier judgment to be interlocutory in nature and purporting to merge the same into one final judgment. It is from this latter judgment that the petitioners have perfected an appeal.

It is well settled that a judicial error cannot be corrected by a judgment nunc pro tunc. Perkins v. Dunlavy, 61 Tex. 241 (1884); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912). There is nothing in the record to show that the judgment of November 4, 1963 has been vacated or set aside, nor do any grounds justifying vacation appear in the record. The judgment is therefore valid and subsisting until set aside by bill of review. Love v. State Bank & Trust Co. of San Antonio, 126 Tex. 591, 90 S.W.2d 819 (1936); Mullins v. Thomas, 136 Tex. 215, 150 S.W.2d 83 (1941) ; Bridgeman v. Moore, 143 Tex. 240, 183 S.W.2d 705 (1944). No appeal having been taken, this Court is without jurisdiction to consider any assignments of error other than those presented in the appeal from the judgment of May 11, 1964.


author: STEAKLEY, Justice.

text:
    FIREMEN’S AND POLICEMEN’S CIVIL SERVICE COMMISSION OF the CITY OF PORT ARTHUR, Texas, et al., Petitioners, v. Glenn F. HAMMAN, Respondent.
    No. A-11060.
    Supreme Court of Texas.
    May 25, 1966.
    Rehearing Denied June 29, 1966.

      H. P. Robichau, Jr., Beaumont, Cary Young, Port Arthur, for petitioners.
    Keith, Mehaffy & Weber, Beaumont, for respondent.
   STEAKLEY, Justice.

Glenn F. Hamman, a policeman with the rank of Inspector, was indefinitely suspended by the Director of Police of Port Arthur, Texas, on May 13,1964. He appealed to the Firemen’s and Policemen’s Civil Service Commission which reduced his suspension to six months without pay. He appealed this order to the district court. On June 24, 1964, Hamman was again indefinitely suspended for different acts and this suspension was upheld upon appeal to the Commission. He again appealed to the district court where the two appeals were consolidated for trial. The trial court upheld the first suspension but set aside the second. The Court of Civil Appeals affirmed. 393 S.W.2d 406. It reasoned that since the second suspension rested on acts which occurred prior to the date of the first suspension, the second suspension was precluded by Sec. 16 of Article 1269m and our opinion in Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284. We granted the Commission’s application for writ of error to review this question. Hamman, who also appealed the trial court judgment upholding the first suspension, and whose points of error were overruled by the Court of Civil Appeals, filed application for writ of error conditioned upon our granting that of the Commission. As is our practice, we granted the conditional application upon granting that of the Commission.

We sustain the Commission’s point of error that the Court of Civil Appeals misinterpreted Sec. 16 of Article 1269m and our holding in Bichsel. Section 16 of Article 1269m provides:

“The Chief or Head of the Fire Department or Police Department of the city government shall have the power to suspend indefinitely any officer or employee under his supervision or jurisdiction for the violation of civil service rules, but in every such case the officer making such order of suspension shall, within one hundred and twenty (120) hours thereafter, file a written statement with the Commission, giving the reasons for such suspension, and immediately furnishing copy thereof to the officer or employee affected by such act, said copy to be delivered in person to such suspended officer or employee by said department head. * * *
“ * * * In any civil service hearing hereunder, the department head is hereby restricted to his official written statement and charges, which shall not be amended, and no act or acts may be complained of by said department head which did not happen or occur within six (6) months immediately preceding the date of suspension by the department head.”

It is clear that an amendment of an original statement or charge is impermissible. We said in Bichsel “We must agree * * * that the statute does limit the Chief to his original written charges which may not be amended.” It was pointed out in Bichsel that the City Attorney had conceded the insufficiency of the charges and had requested permission to withdraw them; the second or amended set of charges was described in the opinion as alleging “virtually the same facts, and the charges were substantially the same as those in the original set. They related to and grew out of the same incident.” Section 16 of Article 1269m does not, however, purport to prohibit more than one charge in any given six-months period. A statement or charge based on acts and incidents unrelated to and differing from those supporting a pending charge is not an amendment of the existing charge and is not barred by the statute. A six-months limitation period in favor of the policeman or fireman is established and a charge is limited to acts occurring during such period. But the statute does not provide immunity from accountability for all acts occurring six months prior to and different from a particular original filing. We pointed out in Bichsel that amendments of charges are generally permitted but it is otherwise in this type of case because of the express provisions of the statute. We find no basis for extending the statutory language to preclude a charge later in time, and based upon different acts and conduct, because such acts occur within six months of a previously pending charge. Here we have two different charges based on different acts; the succeeding charge and suspension are not precluded by the fact that the acts upon which they were based occurred within six months preceding the date of the suspension under the first charge.

In his application for writ of error, Ham-man presented points of error asserting in substance that he was entitled to a preponderance of evidence — as distinguished from a substantial evidence — trial on his appeal to the district court; that he suffered injury and a deprivation of due process of law because of the participation in the hearing of one member of the Commission who had also investigated his acts and conduct; and that the six-months suspension upheld by the trial court and the Court of Civil Appeals was not based on substantial evidence and represented arbitrary action.

Hamman’s appeal to the courts is governed by the substantial evidence rule as correctly held by the Court of Civil Appeals. Section 18 of Article 1269m provides that appeals to the district court from decisions of the Commission “shall be tried de novo.” A substantial evidence trial is a trial de novo and is in full compliance with the statutory requirement of a de novo trial on appeal. In Fire Department of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664 (1949), this Court considered the appeal provisions of Section 18 of Article 1269m and said:

“The extent of such a review has been rather generally held to be limited to an ascertainment of whether there was substantial evidence reasonably sufficient to support the challenged order [citing cases]. There is nothing in Section 18 to suggest that the district court is empowered to do more. Although the statute provides for a trial de novo, this term as applied to reviews of administrative orders has come to have a well-defined significance in the decisions of this state, and as a rule has been taken to mean a trial to determine only the issues of whether the agency’s ruling is free of the taint of any illegality and is reasonably supported by substantial evidence [Citing cases].”

To the same effect see Kavanaugh v. Holcombe, Tex.Civ.App., 312 S.W.2d 399 (writ ref. n. r. e. 1958); accord Bichsel v. Strickland, 371 S.W.2d 785 (Tex.Civ.App. 1963, no writ hist.), and cases cited; see also Board of Water Engineers of Texas v. Colorado River Municipal Water District, 152 Tex. 77, 254 S.W.2d 369 (1953). The Legislature did not in Section 18 of Article 1269m purport to provide for or require a de novo trial on appeal in the full sense. Cf. Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686 (Tex.Sup.1964), and Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958).

We further hold that Hamman was not denied procedural due process of law in the fact that one of the three members of the Commission participated in the investigation of the acts supporting the six-months suspension ordered by the Commission. It is argued by Hamman that participation of a Commission member in both the investigatory and decisional phases of an administrative proceeding is a disqualifying fact and imposes a taint of illegality upon the proceeding which, in turn, destroys the presumption of validity of the order of the Commission. Stated otherwise, that since the order here will be upheld by the courts in a substantial evidence trial if it has support in the evidence, regardless of the existence of contrary evidence, Hamman has not under such circumstances been afforded procedural due process of law.

The statute imposes duties of investigation and inspection upon the Commission. Section 5a of Article 1269m reads, in part:

“The Commission may make investigations concerning, and report upon all matters touching, the enforcement and effect of the provisions of this Act, and the rules and regulations prescribed hereunder; shall inspect all institutions, departments, offices, places, positions and employments affected by this Act at least once every year; and shall ascertain whether this Act and all such rules and regulations are being obeyed. Such investigations may be made by the Commission or by any Commissioner designated by the Commission for that purpose. * * *»

In recently denying the application for writ of error in Texas State Board of Dental Examiners v. Fieldsmith, Tex.Civ. App., 386 S.W.2d 305 (writ ref. n. r. e. 1965), an appeal governed by the substantial evidence rule, we considered the problem of a statutory combination of investigatory and adjudicatory functions in an administrative agency. There an order of the Board of Dental Examiners revoking a license to practice dentistry was assailed as invalid because of denial of due process in the fact that a member of the Board who participated in the investigation which resulted in the filing of the complaint also participated in the hearing and in the vote to revoke the license. We were in agreement with the holding of the Court of Civil Appeals that there was not a denial of procedural due process of law under the circumstances there shown. The Court emphasized the statutory duties of the Board, including those of investigation, in administering the statutes regulating the practice of dentistry and the fact that the statute does not disqualify a Board member who aids in an investigation. The circumstances here are analogous. See also Farb v. State Banking Board, Tex.Civ.App., 343 S.W.2d 508 (writ ref. 1961) ; cf. Pangburn v. CAB, 311 F.2d 349 (1st Cir. 1962); Belizaro v. Zimmerman, 200 F.2d 282 (3rd Cir. 1952); Levers v. Berkshire, 159 F.2d 689 (10th Cir. 1947); Brinkley v. Hassig, 83 F.2d 351 (10th Cir. 1936). We do not hold that under no facts or circumstances would a combination of investigatory and adjudicatory functions constitute a denial of due process of law; we hold that there has been no denial here. See, for example, Re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), where one person acted as0 complainant, prosecutor and judge; National Labor Relations Board v. Phelps, 136 F.2d 562 (5th Cir. 1943), where the examiner was described by the court as “not impartial but partial, not disinterested but partisan,” and the situation was described as one in which “bias and prejudice in a judge” reared “its ugly head.”

The final attack upon the order of the Commission reducing Hamman’s indefinite suspension to six months without pay is that the order was not based on substantial evidence and represented arbitrary action. The argument, which Ham-man candidly admits is a “hypertechnical approach,” follows. The charge supporting the six-month suspension was that Hamman left the police station, his post of duty, and went to a camp in the Hildebrandt Bayou area at approximately 3:00 a. m. the morning of May 9, 1964. Hamman contends that it was alleged in the charge that he did so on May 10, 1964, a date on which he was off duty, from which it follows that “no reasonable man could find” him guilty, since there was no evidence that he left his place of duty on this particular date. The allegation in question read as follows:

“Under this charge it is specified that on the 9th day of May, 1964, while said Inspector Hamman was on duty as officer in charge of the 11:00 p. m. to 7:00 a. m. shift of the Police Department of the City of Port Arthur, the said Inspector Hamman did, at approximately 3:00 a. m., and before the end of his period of duty, leave the Port Arthur Police station and did proceed to a camp or cottage to the West and outside the City limits of the City of Port Arthur, in the Hildebrandt Bayou area, where the said Inspector remained until after 7:00 a. m. on said date. * * * ”

We have no difficulty in reading the foregoing as alleging that Hamman left his post of duty at approximately 3:00 a. m. on the 9th day of May, 1964. It may be true that Hamman’s tour of duty began at 11:00 p. m. on May 8 and that he was off duty on the shift which began at 11:00 p. m. on May 9; the crucial allegation is “that on the 9th day of May, 1964 * * * the said ] nspector did, at approximately 3:00 a. m. and before the end of his period of duty, leave * * The allegations in the charge are not in terms of the times of tours of duty; i. e., from 11:00 p. m. on one date to 7:00 a. m. on the succeeding date. The charge is drafted in the terms of the date on which Hamman left his place of duty; and the fact that he did so on the date in question, May 9, 1964, does not appear to be disputed. We are unable to agree that he was charged with leaving his place of duty at a time when he was not supposed to be on duty.

We sever this consolidated proceeding into two separate causes. One cause is the appeal of Hamman from the Commission order of June IS, 1964, reducing the indefinite suspension of Hamman by the Director of Police to a suspension of six months without pay. As to this cause the judgments of the trial court and of the Court of Civil Appeals sustaining the six-month suspension order are affirmed.

The second cause is Hamman’s appeal from the order of the Commission dated August 28, 1964, upholding the indefinite suspension of Hamman by the Director of Police on June 24, 1964. There was no trial of this cause under the ruling of the trial court. The judgments of the trial court and of the Court of Civil Appeals setting aside this suspension are reversed and this severed cause is remanded to the district court for trial in accordance with this opinion.

ON MOTION FOR REHEARING

Respondent in his motion for rehearing correctly points out that the trial court in its judgment sustained by general reference several of his allegations attacking the suspension order of June 24, 1964, and its sustainment by Petitioner by order dated August 28, 1964, of which complaint was made by Petitioner as Appellant in the Court of Civil Appeals; further, that neither the Court of Civil Appeals nor this Court has expressly written upon these points. He prays in the alternative that the severed cause involving these proceedings be remanded to the Court of Civil Appeals for consideration of these points. Without enumerating them, suffice it to say the points in question are essentially cumulative attacks upon the orders bottomed upon or flowing from the construction of Article 1269m urged by Respondent. The absence of merit in these points follows from our construction of the statute contrary to the contentions of Respondent which means, in turn, that the trial court erred in the referred to respects.

The motion for rehearing is overruled.

      . The reference is to tne Article number as carried in Vernon’s Annotated Texas Civil Statutes.

      . Hamman also has a point of error asserting that the Commission which suspended him was an illegally constituted tribunal; however, the extent of his presentation thereunder is a reference to an allegation in his pleadings, to wit: “He alleged that two members of the Commission who voted were disqualified as a matter of law because: (1) Draughon had been a member of the Port Arthur Charter Commission, having been elected on January 20, 1962, under the provisions of Article 1165, R.S., and not having finished his work thereon until December 1, 1962. (2) LeBlanc had been a member of the Port Commission of the City of Port Arthur, created under the provisions of Article XVI, Sec. 15, of the Charter.” The point is not briefed or otherwise mentioned in Hamman’s application for writ of error because, no doubt, of the following additional statement in his pleadings:
      “(c) Having a Commission which was composed of three members who possessed the qualifications required by law, two of said Comissioners were replaced by other and different men, namely the Defendants DRAUGHON and HE BLANC. [This Plaintiff does not in this proceeding attack the legality of the appointment of said persons to said Commission nor does he seek to bring about a dismissal of the charges solely for the reason that neither of said members possessed the statutory qualification to hold their respective offices; rather, he submits this as one of the circumstances showing that the removal of your Plaintiff was not brought about in good faith.] Neither of the individual Defendants named herein was eligible to hold said office for these reasons: * * *”


author: HAMILTON, Justice.

text:
    Henry H. McCLARY, Petitioner, v. Emma Louise JONES et al., Respondents.
    No. A-11182.
    Supreme Court of Texas.
    May 25, 1966.
    Rehearing Denied July 13, 1966.
    Andress, Woodgate, Richards & Condos, Dallas, for petitioner.
    Arthur C. Steere and Arthur Petry, Houston, for respondents.
   HAMILTON, Justice.

This is a personal injury action brought by the parents of Robert “Rusty” Jones, a five-year old minor at the time he severed one of his fingers in an accident involving a pane of glass in a greenhouse owned by the petitioner Henry H. McClary. The injury was alleged to have occurred as the result of the petitioner’s improper maintenance and operation of the greenhouse. The trial court granted an instructed verdict for the petitioner and rendered judgment that plaintiffs take nothing. The Texarkana Court of Civil Appeals reversed and remanded the case in an opinion ordered not published. Rule 452, Texas Rules of Civil Procedure. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

Petitioner contends that there is no evidence that he was guilty of any negligence proximately causing the injury to the minor plaintiff and, therefore, the Court of Civil Appeals was in error in reversing and remanding the case for trial. We agree.

The facts are as follows: McClary owned a duplex and a greenhouse situated immediately behind it on a tract of land that was located between the residence of the respondents and another home. McClary rented his duplex to various tenants on a month-to-month basis. He did not live on the premises himself and would stop by to make such repairs as were necessary from time to time. The greenhouse was approximately nine years old and was utilized only as a storage facility for any old furniture of petitioner’s tenants. At the time of “Rusty’s” injury, there were children living in the duplex as well as in the other home beside it. All of the children played together. A cyclone fence separated the greenhouse from the property on which the home away from “Rusty’s” house was located. This fence was apparently only a matter of inches from the wall of the greenhouse.

On September 28, 1962, “Rusty” was playing in the yard next to the duplex when his mother called him. He was running to climb the fence next to the greenhouse in order to cross over to his own home. “Rusty”, who was seven and one-half years old at the time of the trial, testified as follows:

“My mother called me to go somewhere and I was climbing over the fence, and this dog was trying to bite my blue jeans, and I got scared and tried to get over real quick, you know, and held on to some glass to try to get down, and it just busted, and my finger was hanging by some skin, and she put me in the car and took me to the hospital.”

Petitioner McClary testified that he knew that children played with the children of his tenants; and that when the children would break out a pane he would repair the greenhouse by either removing the remaining glass and leaving the window open or by boarding up the hole. “Rusty” had been cut on some of this glass earlier on August 13, 1962, while he was climbing on top of the greenhouse. His father testified that at that time the greenhouse was in a state of disrepair w'ith broken glass lying around it and on the roof. However, there is nothing in the record to indicate that McClary ever had any notice at all of this previous accident.

Under the facts of this case, we hold that the landlord McClary could not foresee that the accident and resulting personal injury suffered by “Rusty” were the natural and probable consequences of the omission of the landlord to repair a broken pane of glass in the side of the greenhouse.

In Mabry v. Lee, Tex.Civ.App., 319 S.W.2d 125, error refused, the minor plaintiff was playing in a neighbor’s back yard and decided to climb a chinaberry tree to gather chinaberries. A limb broke and he fell to the ground, striking his head on some scrap iron lying near the property line that divided the premises from those of the owner of the tree. The Court of Civil Appeals held that the accident and personal injuries sustained by the plaintiff were not the natural and probable consequences of the omissions of the defendants in failing to place a guard around their scrap pile or in removing same. It was therefore held that “actionable negligence was not established.” 319 S.W.2d 125, at page 127.

“ * * * There is virtually no condition upon any land with which a child may not possibly get himself into trouble. He may choke to death upon a green apple, pick up a stick and poke it into his eye, or have his skull fractured by a rock found and thrown by his companion. Unless the possessor is to shoulder the impossible burden of making his land completely ‘childproof’, which might mean razing it to the bare earth, something more is called for than the general possibility of somehow coming to some harm which follows the child everywhere throughout his daily existence.” Prosser on Torts, 1964, p. 378, Ch. 11, § 59.

The Court of Civil Appeals relied upon several “attractive nuisance” cases for its holding. This is not made an attractive nuisance case by either the pleadings or the proof. There is no showing that this greenhouse was inherently dangerous or was a nuisance in and of itself.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court that plaintiff take nothing is affirmed.